USA vs. Pena-Garza, (5th Cir. 2006)

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United States Court of Appeals

Fifth Circuit

FILED

IN THE UNITED STATES COURT OF APPEALS

April 11, 2006

FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III

Clerk

No. 05-41156

Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE ALFREDO PENA-GARZA,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:05-CR-192-ALL

Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:* Jose Alfredo Pena-Garza appeals his guilty plea conviction and sentence for illegal reentry after having been previously deported following a prior aggravated felony conviction. He argues that the "felony" and "aggravated felony" provisions of 8U.S.C. § 1326(b)(1) and (2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000) and contends that his challenge is not barred by the appeal-wavier provision in his plea agreement. The Government seeks enforcement of the waiver * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. provision. We need not decide the applicability of the waiver language in Pena-Garza's plea agreement because the only issue that Pena-Garza raises is foreclosed.

Although Pena-Garza contends that Almendarez-Torres v. United States, 523 U.S. 224 (1998), was incorrectly decided and that a majority of the Supreme Court would overrule AlmendarezTorres in light of Apprendi, we have repeatedly rejected such arguments on the basis that Almendarez-Torres remains binding.

See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Pena-Garza properly concedes that his argument is foreclosed in light of AlmendarezTorres and circuit precedent, but he raises it here to preserve it for further review.

AFFIRMED.

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